Kansas Bar Journal
75 J. Kan. Bar Assn. 3, 24-35 (2006).
Individuals with Disabilities Education Act - The Right 'IDEA' for all Childrens' Education
Kansas Bar Journal75 J. Kan. Bar Assn. 3, 24-35 (2006)Individuals with Disabilities Education Act - The Right 'IDEA' for all Childrens' EducationBy Cynthia L. KellyThe Individuals with Disabilities Education Act (IDEA),(fn1) the federal law mandating special education programs in public schools, has ensured educational opportunities for children with disabilities for 30 years. In providing rights to children with disabilities and their parents, the law places a myriad of responsibilities on public school districts and their employees. The complex laws and regulations, at both the state and federal level, have resulted in a multitude of administrative proceedings and court cases that continue to refine the contours of the law.
A Brief Legislative History
Since the passage of the original legislation, the Education of All Handicapped Children Act of 1975 (EAHCA),(fn2) access to education for children with disabilities has increased dramatically. Today more than 6 million children with disabilities are served in the nation's public schools under IDEA's provisions; more than 65,000 students are served in Kansas alone.(fn3)
Legislation to assist individuals with disabilities was not prevalent prior to the 1960s. In 1970 public schools in the United States educated only 20 percent of children with disabilities. Many states had laws that specifically excluded certain students from school, including those who were deaf, blind, emotionally disturbed, or mentally retarded. For some children, although access was not totally blocked, opportunities to receive an appropriate education were limited.(fn4)
Following the U.S. Supreme Court decision in Brown v. Board of Education,(fn5) advocates for children with disabilities brought equal educational opportunity arguments to the courts. Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania(fn6) and Mills v. Board of Education(fn7) were two influential cases. Premised on equal protection and due process theories, each of these class action cases ultimately resulted in settlement agreements that recognized the state's obligation to provide appropriate educational opportunities for children with disabilities. Both settlement agreements provided for parental participation in determining an appropriate educational program and placement and provided the resolution mechanisms for any disputes that the parents might raise.
These cases, and others pending in the early 1970s, provided the impetus for the passage of the EAHCA.(fn8) States joined advocates for children with disabilities in seeking federal legislation that would provide consistency in educational programming and subsidize the costs of providing special education.(fn9) The settlement agreements in PARC and Mills, particularly the parts requiring parental participation in educational programming and administrative due process procedures for resolving disputes, provided the rudimentary elements of the EAHCA. In 1990 the law was renamed the Individuals with Disabilities Education Act.(fn10)
Although many of the provisions of the law are discretionary and require reauthorization by Congress on a regular basis, Part B of EAHCA, the portion of the law that provides funding for special education programs in public schools, is permanent legislation. The primary purpose of this legislation is to assist states and local school districts in providing appropriate educational opportunities for children with disabilities. Additionally, the law protects the rights of children with disabilities and their parents through mandated participation in decision making and a myriad of procedural safeguards. Amendments to IDEA have expanded procedural and substantive rights under the law, but they have remained in line with IDEA's general purposes.(fn11)
In response to the Supreme Court decision in Smith v. Robinson,(fn12) the Handicapped Children's Protection Act of 1986(fn13) strengthened parental and student protections by allowing for recovery of attorney fees under IDEA and statutorily preventing pre-emption of Section 504 and constitutional claims. The 1986 amendments mandated services for children ages 3 to 5 and established a separate program for infants and toddlers.(fn14) The 1990 amendments(fn15) expanded the categories of disability by adding autism and traumatic brain injury. These amendments also attempted to improve the quality of services by adding assistive technology devices and assistive technology services to the law. Finally, the amendments helped facilitate a student's ultimate departure from school by requiring transition services - a coordinated set of activities designed to help a student prepare for employment, independent living, or postsecondary education after leaving high school - for each student.
The most sweeping amendments to IDEA came in 1997.(fn16) For the first time, amendments to IDEA attempted to address the education of children with disabilities within the context of education reform. Focus shifted from access to educational opportunities to improvement of performance and educational achievement. Access to the general curriculum and participation in assessments were key components of the 1997 legislation and remained central in the 2004 amendments.(fn17) In addition, the law strengthened the role of parents in educational decision making for their child by encouraging the use of mediation for dispute resolution and by including measures to prevent misidentification and mislabeling of students. Finally, the amendments attempted to balance safety and learning concerns for all students with the rights of children with disabilities through codification of comprehensive disciplinary procedures.(fn18)
The amendments of 2004 shift the focus of IDEA from bureaucratic compliance with procedures to student outcomes and student achievement. The amendments attempt, at times imperfectly, to dovetail the IDEA requirements with student performance standards and teacher quality requirements set forth by Congress in the No Child Left Behind legislation.
One of the most troublesome aspects of the law for schools is the lack of adequate funding for special education programs at both the state and federal levels. Recognizing there are costs above those involved in educating a regular education child, the federal law originally authorized federal funding to cover 40 percent of this excess cost. Current law calculates this amount based on 40 percent of the average per pupil expenditure in public elementary and secondary schools in the United States.(fn19) However, appropriations have never approached the authorized expenditure level. For many years, federal appropriations did not cover even 10 percent of the excess cost. Although federal appropriations have increased substantially over the past decade, they still cover less than 20 percent of the cost involved in providing these programs, and they have declined precipitously since resources have been diverted to the war on terror.(fn20)
Which Students Receive Services?
In order to be eligible for special education and related services under IDEA, a student must be a child with one of the specific disabilities included in the law, and, as a result, the student must need special education.(fn21) If a child has one of the specified disabilities, but does not need specialized instruction in order to receive educational benefit, the child is not eligible for services under IDEA.
Schools cannot wait for children with disabilities to arrive at their doorstep. They must affirmatively attempt to locate children with disabilities and offer to provide services to these children through "child find" screening activities.(fn22)
Since the passage of the EAHCA in 1975, the number of children receiving special education and related services nationwide has steadily increased.(fn23) In the past decade, the number of students served under IDEA increased almost 30 percent. This growth rate far exceeded growth in the resident population and in school enrollment. Although the law recognizes 13 categories of disability, about half of the students served under the law are categorized as having specific learning disabilities such as dyslexia or other reading or math deficits. Speech or language impairments (18.9 percent), mental retardation (10.6 percent), and emotional disturbance (formerly called behavior disorders in Kansas) (8.2 percent) are the next largest categories. The fastest-growing low incidence categories include children with autism and children classified as "other health impaired" due to attention deficit disorder or attention deficit hyperactivity disorder. In addition to students ages 6 to 21, preschoolers, infants, and toddlers are also served under IDEA.
The state picture mirrors the federal picture in many respects. Kansas schools currently serve more than 65,000 children in special education programs. An additional 15,800 students are served in gifted programs throughout the state. Today more than 6,500 professionals and 7,600 paraprofessionals are employed in Kansas schools to meet the needs of exceptional children.
The Components of IDEA
As a condition of receiving federal funding under IDEA, the state must agree to provide a free appropriate public education (a term that will be more...